CIT Dismisses Another 1581(i) Case Brought by Canadian Lumber Exporter
The Court of International Trade dismissed Aug. 21 a case brought by Canadian lumber exporter J.D. Irving in an attempt to secure a lower antidumping duty cash deposit rate for some of its entries.
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Court of International Trade Judge Timothy Reif agreed with the United States that the trade court lacks subject matter jurisdiction over the dispute, explaining that J.D. Irving had the chance to file its challenge under 28 U.S.C. 1581(c) before the case went to a binational panel, but that judicial review is unavailable since the case is now in the panel's hands (see 2503170067 and 2505150034).
J.D. Irving argued in its 2022 motion for judgment that certain imports it entered after Dec. 2, 2021, should have received the cash deposit rate established for Canadian lumber exports in the 2020 antidumping duty review of the products (see 2209120031). The exporter hadn’t been a respondent in the 2020 review, selected or nonselected, as no party sought its inclusion.
The Commerce Department initially instructed instead that the entries be liquidated under the 2018 review’s 1.57% AD rate. But before CBP could comply, the results of the 2019 review -- in which J.D. Irving had participated -- were released Dec. 2, 2021, setting a new 11.59% AD rate. Commerce therefore updated its instructions and told CBP to liquidate all of J.D. Irving’s entries made after Dec. 2, 2021, at the 11.59% rate.
The U.S. asked to dismiss the case as improperly brought under 1581(i), saying that the case challenges the 2019 review results and should have been brought under 1581(c). J.D. Irving argued in turn that it was challenging only the cash deposit instructions following the 2020 AD review in which it didn’t participate.
In his opinion dismissing the case, Reif noted that J.D. Irving unsuccessfully attempted to challenge the 11.59% rate under 1581(i) in a different 2021 case involving J.D. Irving that reached the U.S. Court of Appeals for the Federal Circuit in 2023 (see 2410100042). He said the exporter’s argument there was essentially “identical” to the one it was putting forth in J.D. Irving II.
That other case saw the exporter argue it was challenging not the 2019 review results, but the cash deposit instruction that followed the 2019 review (see 2301250060). Reif, the judge presiding over that case as well, dismissed it in 2023 as incorrectly brought under 1581(i). CAFC upheld the decision, providing “three core reasons” as to why the “true nature” of the other case was that of a challenge to the 2019 review results.
Reif ruled again in his Aug. 19 opinion that the same held true for J.D. Irving's second case. CAFC’s three reasons applied with equal weight to the exporter’s most recent arguments.
First, he said, the agency action underlying J.D. Irving’s alleged harm was “Commerce’s assignment of a cash deposit rate higher than 1.57%” in the 2019 review.
Second, in the 2019 review’s results, Commerce said it would be assigning the exporter “a cash deposit rate based on the final results of this administrative review,” addressing the administrative brief J.D. Irving filed in response to the 2019 review’s preliminary results, the judge said.
“Commerce in an [issues and decision memorandum] responds only to objections to the preliminary results, which suggested that the ‘true nature’ of J.D. Irving’s challenge was a challenge to the final results,” he said.
Third, J.D. Irving filed a notice of intent to seek judicial review to the USMCA panel called by other 2019 respondents. In it, the exporter said it was challenging the 2019 review results, he said.
Reif explained that, because those other respondents to the 2019 review requested the USMCA panel, 1581(c) barred J.D. Irving from seeking a CIT ruling on the same review. Again, he found that the exporter was simply attempting to avoid the panel by trying to file under 1581(i).
(J.D. Irving v. United States, Slip Op. 25-108, CIT # 22-00256, dated 8/21/25; Judge: Timothy M. Reif; Attorneys: Jay Campbell of White & Case for plaintiff J.D. Irving; Eric Laufgraben for defendant U.S. government)